Mere negligence or abandonment? Evaluating claims of attorney misconduct after Maples v. Thomas.

AuthorZupac, Wendy Zorana

NOTE CONTENTS INTRODUCTION I. THE RIGHT TO COUNSEL II. PERFORMANCE-BASED AND RELATIONSHIP-BASED MODELS IN THE LAW OF PROCEDURAL DEFAULT A. Two Frameworks for Analyzing Attorney Misconduct B. The Role of the Two Models in the "Procedural-Default" Doctrine C. Postconviction Counsel in the States III. THE COURTS' EFFORTS TO EXEMPT HABEAS PETITIONERS FROM THE MISTAKES OF THEIR ATTORNEYS A. The Development of the Equitable-Tolling Jurisprudence B. Negligent Lawyers Reach the Supreme Court C. The Law Governing Postconviction Counsel After Maples and Martinez IV. THE FUTURE OF THE RELATIONSHIP-BASED MODEL A. A Normative Analysis of the Relationship-Based Model B. Post-Link Applications of the Relationship-Based Model 1. Communication 2. Weighing the Harm to the Plaintiff Against the Prejudice to the Defendant 3. Effective or Virtual Abandonment C. Application of Rule 60(b)(6) Principles to Habeas Cases CONCLUSION INTRODUCTION

Many habeas petitioners have learned that having a bad lawyer can be worse than having no lawyer at all. Take, for example, the story of Ricky Kerr's near execution. The lawyer appointed to represent Kerr in his state postconviction proceedings filed a three-page habeas corpus application, containing just one legal argument, which did not actually challenge the validity of Kerr's trial or sentence. (1) His application was dismissed summarily by the Texas courts. As Kerr's execution date approached, his lawyer began to suffer severe health problems and stopped worldng on the case altogether. (2) Eventually, another lawyer stepped in on Kerr's behalf to file an emergency motion with the Texas Court of Criminal Appeals (CCA). (3) The motion contained an affidavit from the previous attorney confessing that he may have committed a "gross error in judgment," and that he was perhaps "not competent to represent Mr. Kerr in a death-penalty case." (4) Nonetheless, the CCA denied Mr. Kerr's application, prompting one judge to proclaim, "If applicant is executed as scheduled, this Court is going to have blood on its hands ...." (5)

Other lawyers have ended their clients' hopes of relief by failing to file applications within the statutory deadlines.6 For example, the lawyers for Roger Keith Coleman, a death-row inmate in Virginia, failed to file a notice of appeal with the Virginia Supreme Court within the required thirty-day window after the state court denied his habeas application. (7) The Supreme Court held that Coleman's lawyers' failure to file a timely notice of appeal foreclosed further review of his constitutional claims. (8)

The Coleman Court reasoned that because "the attorney is the petitioner's agent" within the scope of the litigation, "the petitioner must 'bear the risk of attorney error.'" (9) Under this rule, because habeas petitioners do not have a constitutional right to counsel during postconviction proceedings, (10) petitioners whose lawyers filed woefully inadequate or untimely habeas petitions typically did not have any remedy. However, in a trio of recent decisions-Holland v. Florida, (11) Maples v. Thomas, (12) and Martinez v. Ryan (13)--the Court injected some flexibility into the strict Coleman rule and fashioned remedies for habeas petitioners with negligent lawyers. Unfortunately, the Court's reasoning from case to case has been inconsistent and murky and has given little guidance to lower courts concerning the scope of the remedy.

This Note offers a new approach to understanding the Court's jurisprudence in this area. I argue that much of the confusion stems from the fact that the Court has vacillated between two different analytic models in evaluating attorney conduct--a performance-based model and a relationship-based model. These models, as explained in Part II of this Note, address different aspects of an attorney's conduct. The performance-based model, which examines a lawyer's efforts on behalf of his client, is more robust because it imposes a baseline standard of reasonableness on an attorney's work. However, it only applies when the Sixth Amendment right to counsel has attached. (14) In circumstances where individuals do not have a constitutional guarantee of counsel, a relationship-based model, which examines the attorney-client relationship through the lens of agency law, governs. Part III of this Note examines how lower courts have alternated between the two models to evaluate attorney misconduct in the collateral-review context, with the Supreme Court attempting in Maples to resituate the doctrine firmly within the relationship-based model.

Finally, in Part IV, I argue that federal habeas courts should embrace a flexible application of the relationship-based model to address the misconduct ofpostconviction attorneys. This portion of my Note offers a novel approach to understanding the consequences and potential of the relationship-based model after Maples. The analytic foundation for the relationship-based model derives from agency principles that have governed attorney-client relationships in the civil litigation (15) context. The Coleman Court explicitly borrowed these concepts from civil cases and applied them to the procedural-default habeas jurisprudence. However, the Coleman Court failed to appreciate that courts hearing civil cases have long applied an extremely flexible approach to agency principles. In a body of cases, civil litigants have sought to reopen cases that trial courts have dismissed due to their lawyers' negligence. (16) The lower courts, in analyzing these cases, have applied the agency principles that the Supreme Court applied in Coleman, yet have done so much more flexibly. I argue that these civil cases should guide lower courts attempting to apply the relationship-based model most recently affirmed in Maples. By doing so, the courts can create parity between the strictness of agency principles as applied to civil litigants and habeas petitioners and, most importantly, can protect habeas petitioners from suffering the harsh consequences that can result from a negligent attorney's mistakes.


    In this Part, I briefly describe how an individual's right to counsel changes at different stages of a criminal case. (17) This discussion provides a context in which to place the two models described by this Note. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right.., to have the Assistance of Counsel for his defence." (18) In Gideon v. Wainwright, the Supreme Court held that states were required to provide counsel in all felony cases. (19) The right to counsel lasts until the trial judge determines the sentence to be imposed. (20) Defendants also have a right to counsel in their first appeals of right (i.e., appeals to which all defendants are entitled under the relevant state statute or federal law). (21) The right to counsel also means that the defendant has the right to the effective assistance of counsel. (22) In other words, whenever the Sixth Amendment guarantees appointment of counsel, the appointed counsel must meet certain standards of performance. However, the flip side is that the right to effective assistance of counsel is dependent on the defendant having a constitutional right to counsel. There are various critical stages of a criminal case in which a defendant does not have a constitutional right to counsel, and these stages are the focus of this Note.

    Defendants do not have a right to counsel in their discretionary appeals to the state's highest court or in filing a petition for certiorari to the United States Supreme Court. (23) After a defendant has completed direct-review proceedings, he may file a petition for postconviction relief in state trial court. This is known as a "collateral attack" on the conviction, and each state has different procedures and terminology for this stage of the process. (24) State postconviction proceedings are frequently the first available forum for the petitioner to raise certain constitutional claims, such as ineffective assistance of trial counsel or suppression of evidence. (25) Finally, a prisoner subsequently may file a petition for a writ of habeas corpus in federal district court. Various state and federal statutes provide for the appointment of counsel for indigent petitioners in postconviction or habeas proceedings, (26) but because the petitioner does not have a constitutional right to counsel at that stage, he does not have a guarantee of effective counsel. The Supreme Court has held that there is no Sixth Amendment (27) or due process right (28) to counsel in habeas or collateral-review proceedings. The remainder of this Note examines the Supreme Court's recent efforts to address the consequences facing habeas petitioners saddled with grossly negligent representation during their postconviction proceedings.


    The Supreme Court has vacillated between two models in its decisions addressing the right to counsel and the effect of attorney conduct on a habeas petitioner's ability to present his claims, which I term the "performance-based" model and the "relationship-based" model. In this Part, I describe these models and the analytically distinct foundations of each one. I then examine the role that these models have played in the development of the Supreme Court's procedural-default jurisprudence. Finally, I step back from the theoretical discussion to examine the defects in the system of appointing and monitoring postconviction attorneys to highlight the serious consequences facing habeas petitioners who are bound by the conduct of their attorneys.

    1. Two Frameworks for Analyzing Attorney Misconduct

      The Supreme Court's jurisprudence concerning when clients should be bound by the misconduct, negligence, or mistakes of their attorneys has utilized two analytically distinct models: a performance-based model and a relationship-based...

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